Shiur #08: The Beit Din Le-Giyur (2) Which Parts of the Conversion Require a Beit Din?

  • Rav David Brofsky
Last week, we began our discussion of the beit din le-giyur. The Talmud (Yevamot 47b) teaches that a conversion must be performed in front of a beit din of three dayanim. We noted that due to the comparison to other batei din, many Rishonim assume that a beit din le-giyur must be comprised of three dayanim semukhin, judges who have the original semikha passed from generation to generation beginning from Moshe Rabbeinu. Given that this semikha no longer exists, how is it possible to continue converting non-Jews?
Some Rishonim (Tosafot, ad loc., s.v. mishpat; Ramban, Sanhedrin 3a) suggest that just as other areas of Jewish law are adjudicated by rabbinic judges who are not semukhin, based on the principle of "shelichutayhu avdinan" – they are doing their agency – the same is true regarding conversion. Others (R"i, cited by Ritva, Yevamot 46b, s.v. dilma; Nemukei Yosef, Yevamot 16a, s.v. tanu rabannan) suggest that when dayanim semukhin are no longer available, ordinary dayanim may perform conversions based on the verse cited by the gemara, “And if a stranger sojourns with you, or whosoever may be among you, throughout your generations (le-doroteikhem)” (Bemidbar 15:14). Furthermore, some Rishonim (Rashba, Yevamot 46b, s.v. dilma) explain that "le-doroteikhem" teaches that although a conversion must be performed by a court of three, the three judges need not be semukhin even in the times when there were dayanim semukhin.
It is noteworthy that the Rambam appears to maintain that conversions may be performed by ordinary dayanim. Indeed, in a well-known passage regarding the "wives of Shimshon and Shlomo," the Rambam (Hilkhot Issurei Bi'ah 14:15) distinguishes between conversion performed by "hedyotot" and those performed by a regular beit din. Since both types of conversions are halakhically valid, we see that the Rambam does not require that conversion be performed by dayanim semukhin.
This week, we will discuss which part of the conversion process (i.e. the mila, the tevila, and/or the kabbalat mitzvot) must be performed in the presence of three dayanim.  
The Talmud
Although the Talmud (Yevamot 46b) clearly requires that a conversion be performed in the presence of three dayanim, the gemara does not specify which segment of the conversion process requires a beit din. This question may be central to understanding the role of a beit din le-giyur in the conversion process, as well as the nature of each of the individual components of the conversion process.
Numerous sources appear to indicate the presence of three dayanim for the tevila. For example, the Talmud (Yevamot 46b) teaches:
Rabba said: There was an incident in the house of R. Chiyya bar Rabbi, and as R. Yosef teaches it, R. Oshaya bar Rabbi was also present, and as R. Safra teaches it, a third Sage, R. Oshaya son of R. Chiyya was also present, in which a convert came before him who was circumcised but had not immersed. He said to the convert: “Remain here with us until tomorrow, and then we will immerse you.” Rabba said: Learn from this incident three principles: Learn from it that a convert requires a court of three people to preside over the conversion. And learn from it that one is not considered to be a convert until he has been both circumcised and immersed. And learn from it that the court may not immerse a convert at night, as they instructed him to remain there until the following day.
This passage, which clearly indicates that the presence of three dayanim is required, refers specifically to the immersion of the convert. Similarly, the Talmud interprets the beraita, which states, "And two Torah scholars stand over him [at the time of his immersion]," as actually referring to three scholars.
However, the Rishonim note that another passage appears to omit the requirement of three dayanim. The gemara (ibid. 45b) teaches:
R. Chiyya bar Ami's slave immersed a certain gentile woman for the sake of having intimate relations [i.e., to purify her from her menstrual impurity]. R. Yosef said: I am able to render both her and her daughter fit [to marry into the congregation of Israel]. With regard to her, I can render her fit in accordance with the opinion of R. Asi, as R. Asi said: Didn't she immerse for the sake of purifying herself from her menstruation? And with regard to her daughter, she is the daughter of a gentile or slave who engaged in intercourse with a Jewish woman, and the lineage of the offspring [of such a union] is unflawed.
There was a certain man whom people would call “Son of the Aramean woman” [as they cast aspersions on the validity of his mother’s conversion. With regard to that case,] R. Asi said: Didn't she immerse for the sake of purifying herself from her menstruation? A similar incident is recounted: There was a certain man whom people would call “Son of an Aramean man.” R. Yehoshua ben Levi said: Didn't he immerse for the sake of purifying himself from his seminal emission?
This passage seems to imply that an immersion (tevila) for the sake of purification of a nidda suffices for conversion. 
This story raises numerous questions relating to the intention (kavana) of the immersion for conversion, as well as whether it can be performed at night (when the immersion of a nidda is generally performed). For our purposes, the gemara also makes no mention of three dayanim, which were seemingly not present when this woman immersed. If so, in light of the sources cited above, how is this conversion valid? We will first present different approaches to understanding this passage in relation to others, and we will then summarize the halakhic views.
The Behag (Hilkhot Mila 8, p. 152) implies that this passage simply disagrees with the previously cited sources. He concludes that the halakha is in accordance with those passages that maintain that the tevila must be performed in from of three dayanim.
Most Rishonim, however, suggest different resolutions to the apparent contradiction between these sources.
The Rif (Yevamot 15b), for example, distinguishes between two halakhic levels of conversion – le-chatchila and be-di'avad. He notes the contradiction between the sources and writes:
This is not difficult. The statements of R. Asi and R. Yehoshua ben Levi refer to a be-diavad case, in which case we do not disqualify the child, since he [his father] immersed for the sake of purification from a seminal emission … And the statement of R. Yochanan refers to the optimal practice, as we do not treat him as a convert and permit him to marry a Jewish woman until he immerses in the presence of three [judges].
The Rif seems to maintain that although preferably, and in order to be permitted to marry, a convert must immerse in the presence of a beit din, be-di'avad, we still consider her immersion, and therefore her conversion, to be valid.
Some Rishonim distinguish between different parts of the conversion process. For example, Tosofot (Yevamot 45b, s.v. mi lo; see also Kiddushin 62b s.v. ger) rules that only the kabbalat mitzvot must be performed in the presence of a beit din. Although the tevila should also preferably be in front of three dayanim, be-di'avad, the conversion is valid even if the convert immersed alone, in accordance with the gemara cited above. The Rosh (Yevamot 4:31) and Ran (Kiddusin 26a) concur.
Similarly, the Ramban (Yevamot 45b, s.v. mi lo tavla) explains that while kabbalat mitzvot must be performed in the presence of a beit din, if the convert then immerses alone, he is considered to be Jewish, but he may only marry a Jewish spouse if he immerses again in the presence of a beit din. The Ramban attributes this view to the Rif, cited above.
Finally, other Rishonim maintain that the tevila must indeed be performed in the presence of a beit din, and they offer different interpretations of the passage indicating that a beit din is not required.
The Ritva (Yevamot 45b, s.v. mi lo) and the Nemukei Yosef (ibid. 15b, s.v. mi lo) explain that although the woman in this case mistakenly immersed with the intention to be pure from tumat nidda, a beit din was indeed present. Alternatively, Tosafot (ibid.) cites an opinion that maintains that although a beit din of three is required for tevila, "since it is apparent to all that she immersed, it is as if [the dayanim] were standing there." This opinion requires a beit din for all parts of the conversion process, but immersion done with the beit din's absolute knowledge is considered to be have been performed in the presence of the beit din. This approach has far reaching ramifications, which we will address in a different context.
The Rambam (Hilhot Issurei Bi'ah 13:7) also requires that the tevila and the kabbalat mitzvot be performed in the presence of a beit din. However, he interprets the gemara in a different manner, explaining that the gemara refers to a case in which a person is attempting to prove that he converted. The gemara states that if she is known to immerse in a mikveh, even if she cannot bring proof that she was converted, she is considered to be Jewish. However, before marrying a Jewish spouse, she must first immerse again in a mikveh in the presence of three dayanim.
Does Brit Mila Require a Beit Din?
As the Beit Yosef (YD 268) notes, the Talmud never explicitly discusses whether a convert's brit mila must be performed in the presence of a beit din. The Tur (YD 268) writes that mila requires a beit din of three dayanim, and this view is found in the Nemukei Yosef (ibid. 15b) as well.
Some distinguish between tevila and mila. The Meiri, for example, cites a view that maintains that although if the immersion is not performed in the presence of a beit din the conversion is still valid be-di'avad, the brit mila must be formed in front of three dayanim. Alternatively, R. Yishayahu ben Elijah di Trani (Italy, 13th-14th century), known as the Riaz (cited by the Shiltei Giborim, Yevamot 15b), maintains that while the tevila must be performed in the presence of a beit din, the brit mila is valid if done in from of only two. The Bach (YD 268) insists that some Rishonim, including the Rif and Rambam (Hilkhot Issurei Bi'ah 13:6), maintain that there is no requirement at all to perform the brit mila in the presence of a beit din.
Mila and Tevila in the Presence of a Beit Din: Summary
In summary, we cited the following opinions:
  • Behag: The entire conversion process must be performed in the presence of a beit din. This appears to be the view of the Rambam as well. Tosafot cite a view that accepts this approach but maintains that the beit din's "knowledge" of the tevila suffices.
  • Tosafot, Rosh, Ran: Preferably, the entire conversion process should be performed in the presence of a beit din. Be-di'avad, if the tevila was done without a beit din, the conversion is valid. In that case, the Ramban (Rif) requires that the convert immerse in the presence of a beit din before marrying.
  • In addition, we noted that some distinguish between mila and tevila, either accepting tevila performed alone (Riaz) or mila performed without a beit din (an opinion cited by the Meiri).
  • The Rif appears to maintain that be-di'avad, the entire conversion is valid even if not performed in front of a beit din. Incidentally, the Mordechai (Yevamot 36) cites the Ri bar Yom Tov and Rabbeinu Simcha, who explain that mi-de'oraita, a conversion may be performed in the presence of once dayan mumcheh, whereas mi-derabbanan, it must be performed in the presence of three.
The Practical Halakha
In practice, the mila, tevila, and kabbalat mitzvot are performed in from of a beit din. The Shulchan Arukh (YD 268:3) writes, however:
All matters of the convert, from informing them of the mitzvot and their acceptance of them, the circumcision, and the immersion, must be in the presence of three who are fit to judge, and during the day. But be-di’avad, if he was circumcised or immersed at night or in front of two (Rema: or in front of [the convert’s] relatives [which is invalid]), or even if he did not immerse with the intention of conversion, but rather a man immersed for a seminal emission or a woman immersed to become ritually pure after menstruating, they are still converts, and he is permitted to [marry] an Israelite woman. This all applies to the immersion and the circumcision; it does not apply to kabbalat ha-mitzvot, which invalidates [the conversion] unless it was performed during the day and in front of three [judges].
However, the Rif and the Rambam maintain that even be-di’avad, immersion or circumcision before two [witnesses] or at night prevents [conversion], and [marrying] an Israelite woman is forbidden. But, if he married an Israelite woman and she has borne him a son, we do not invalidate him [the son].
The Shulchan Arukh first cites the lenient position of the Tosafot and Rosh, which validates a conversion in which the tevila was not performed in the presence of a beit din; he then cites the stricter view of the Rambam (and Rif).
Although some Acharonim (Perach Mateh Aharon 52; Sefer Nehar Mitzrayim, Hilkhot Gerim 13) suggest that the Shulchan Arukh rules in accordance with the second view – that of the Rambam and Rif – most Acharonim assume that when the Shulchan Arukh cites two views in this manner, the halakha is in accordance with the first view.
In practice, although many batei din are lenient with regard to a circumcision or hatafat dam brit that was not performed in from of a beit din, such as when the mila was performed le-shem mitzva and not le-shem giyur, they are generally stricter regarding the tevila.